Public Land Withdrawals Can Be Rolled Back

March 16, 2017 | By JEFF MCCOY

The Congressional Review Act (“CRA”) defines “rule” broadly, to include any regulatory agency document that impacts the general public. The Congressional Review Act adopts the definition of “rule” from Section 551 of the Administrative Procedure Act, with some modifications. Specifically, for the purposes of the CRA, a “rule” is an “agency statement of general … applicability and future effect designed to implement, interpret, or prescribe law or policy ….”

Among those agency decisions that are reviewable under the CRA are public land withdrawals made by the Secretary of the Department of Interior. The presumption under federal law is that most federal land can be used for many purposes. Land withdrawals are decisions that prevent certain, otherwise legal uses on public land. Withdrawals can be made for up to 20 years, but may be extended indefinitely, and are most often implemented to prevent new mineral development. Most withdrawal decisions affect fewer than a couple hundred acres. Others, however, withdraw hundreds of thousands, or even millions of acres.

For example, a 2012 withdrawal prevented new mineral exploration and development, and greatly hindered existing development, on over a million acres of land. Senator John McCain of Arizona called the withdrawal “a devastating blow to job creation in Northern Arizona,” and a decision that went against a decades-old compromise that “successfully balanced conservation with mining and other commercial activities.” Even worse, the decision was made despite no evidence that mining operations in the relevant territory have more than negligible impact on the protection of the Grand Canyon, which was the purported reason for implementing the withdrawal. The relevant withdrawal areas are miles from the north and south rims of the Grand Canyon, and the northern part of the withdrawal area extends almost to the Arizona/Utah border.

Withdrawal Decisions Are “Rules”

These types of withdrawal decisions are subject to the CRA. The Supreme Court has stated that withdrawal decisions are rules of general applicability within the meaning of the Administrative Procedure Act because they announce “with respect to vast expanses of territory that they cover, the agency’s intent” on how it will manage the land. Withdrawal decisions affect the rights and obligations of those that use the public lands and, as a result, are “rules” that fall within the purview of the CRA.

Despite the fact that withdrawal decisions are “rules” within the meaning of the CRA, past administrations failed to send the required CRA report to Congress and the Comptroller General. Although the Federal Land Policy and Management Act (“FLPMA”) requires the Secretary of Interior to send notice to Congress of withdrawal decisions, that notice requirement is separate and distinct from the CRA’s reporting requirement. In fact, the CRA requires agencies to submit the information listed in the CRA in addition to “any other relevant information or requirements under any other Act ….”

The CRA’s Procedural Requirements

The CRA requires a separate report to be sent to each House of Congress and the Comptroller General because of the unique procedural aspects for considering resolutions of disapproval. As the legislative history of the CRA indicates, the agency must send the report separately to the Speaker of the House, the President of the Senate, and the Comptroller General. This process notifies those in charge of Senate and House procedures, and the parliamentarians who help advise each House about those procedures, that the CRA review clock has begun on a particular rule. The authors of the CRA determined this function needed to be centralized in one location in each House because they were aware of the various committee reports required under other statutes. The authors wisely decided that those decentralized reports, often containing different information, were not sufficient to govern the suspension of the House’s normal rules for the consideration of resolutions under the CRA.

FLPMA’s notice requirement, on the other hand, predates the CRA and requires the Secretary of Interior to deliver somewhat different information to the Committee on Natural Resources of the House of Representatives and the Committee on Energy and Natural Resources of the Senate for different purposes. That the CRA did not eliminate FLPMA reporting requirements in no way implies that the requirements of the former statute would satisfy the different requirements of the latter statute.

The Comptroller General

Furthermore, the Comptroller General plays a vital role under the CRA. When an agency submits its report under the CRA, it must also provide the Comptroller General with a report that includes any cost-benefit analysis and information regarding the economic impact of the rule. Within 15 days of receiving the agency’s report, the Comptroller General must provide a report to Congress on each major rule adopted by an agency. Thus, under the CRA, it is the Comptroller General’s responsibility to inform Congress on the costs of major federal action.  And various committees of Congress can and often do request GAO studies and reports on non-major rules in its CRA database.  Under FLPMA, there is no requirement to send a withdrawal notice to the Comptroller General, and the Government Accountability Office’s database indicates that the office did not receive any reports on past withdrawals.

The requirements of FLPMA cannot satisfy the requirements of the CRA. Even if past Secretaries of the Interior sent a notice of withdrawal decisions to certain committees of Congress for one statutory purpose, they still did not comply with CRA’s separate requirement to send a particular report to the presiding officer of each House of Congress and the Comptroller General. As a result, past withdrawal decisions remain vulnerable to Congress’s disapproval if the current administration complied with the CRA and sent the required reports on them to the respective Houses and GAO.